This appeal is directed against the judgment dated 15.4.1998 passed by the learned Sessions Judge, Sialkot whereby he convicted the appellant under Section 302(b) PPC and sentenced him to imprisonment for life and to pay compensation of Rs,25,000/- to the legal heirs of the deceased, in default whereof to undergo further imprisonment for six months in case FIR No, 373 dated 24.6.1995 offence .ender Sections 302/34 PPC registered at Police Station Ugooki District Sialkot. Benefit of Section 382-B Cr.P.C. was extended to the appellant whereas co-accused Muhammad Akram and Muhammad Ilyas were acquitted.
2. Briefly the story of prosecution as per FIR (Ex PC) is that on 24.6.1995 at about 8.30 a.m. in the area of Gohidpur appellant Ghafoor alias Flatoo while armed with churri, Ilyas and Akram empty handed (acquitted accused) made a murderous assault upon Muhammad Fazal who received serious injuries and later on died in the hospital.
Motive behind the occurrence was stated to be that Muhammad Akram etc. purchased land from Mst. Daulat Bibi, aunt of the complainant. Later on Akram etc. demanded to get path for street.
Complainant's father (deceased) refused to give way to the accused party. Due to this revenge, the occurrence took place.
3. After usual investigation, the challan was submitted' to the learned trial Court against the appellant and acquitted accused. Charge was framed. The appellant denied; of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant examined himself under Section 342 Cr.P.C. in answer to Question No, 6 he replied as under: "My house is near the place of occurrence. I heard hue and cry and reached the place of occurrence. Akram and llyas were there and were under attack of the complainant party. Haji Muhammad Fazal deceased was armed with pistol and he had fired at llyas co-accused hitting on his left leg knee. Riaz complainant gave hockey blow to Akram co-accused. Ilyas is my son-in-law (damad), seeing them under attack and in danger, I acted for the defence of my relatives especially of my son-in-law (damad) and knife churri blows to Haji Muhammad Fazal only in the exercise of right of self-defence."
Neither he opted to appear as his witness under Section 340(2) Cr.P.0 nor did he adduce any defence evidence. However, Dr. Ijaz Ahmad Chatha, Surgeon AIM Hospital, Sialkot appeared as CW.1.
4. Kh. Sultan Ahmad, learned counsel for appellant has contended that it is a case wherein the eye- witnesses were disbelieved by the learned trial Court and the conviction was recorded only on the basis of report under Section 173 Cr.P.0 which even was not tendered in evidence by the prosecution and in fact it was a case of self-defence and when the prosecution evidence was disbelieved then the plea of accused (e believed in toto particularly when there were two persons severely injured from the accused side and prayed for the acquittal of the appellant.
5. Mr. Munir Ahmad Bhatti, learned counsel for the complainant has contended that it was a day light occurrence. The appellant was nominated in the promptly lodged FIR with a specific role of causing injuries afthe person of deceased. Recovery of churri/weapon of offence was effected at his instance. The same was found stained with human blood, as per report of Chemical Examiner and Serologist, whereas the plea of self-defence was an after thought and negated by the evidence of Dr. Ejaz Ahmad Chatha, (CW.1), hence there is no substance in the appeal and prayed for maintaining the conviction and sentence.
6. I have heard both the learned counsel for the parties and have gone through the evidence with their able assistance.
7. Before dealing with the contentions of the learned counsel for the parties in the light of evidence on record, for facility of reference I would like to reproduce the conclusion arrived at by the learned trial Court qua the presence of eye-witnesses on the spot in Para 12 of the impugned judgment which is as under:-- "The only probable reason can be that possibly these three eye-witnesses were not present at the place where they claimed to be at the time of occurrence, particularly when regard is had to the fact that all 3 of the eye-witnesses were young and able bodied whereas one of the accused person Ghafoor was aged about 55 years and the other Akram aged about 50 years and out of three accused persons two were empty handed and the oldest of them was armed only with a churri, particularly when the occurrence was to take place in a Bazar and in front of two shops named and styled as Nanna Ready Made Garments and Rubi General Store and obviously the complainant party could get support from the other persons present as well."
8. Similarly, I would also like to reproduce the starting lines from Para No, 13 of the impugned judgment, according to which report under Section 173 Cr.P.0 submitted before the learned trial Court was made basis for the conviction and sentence of the appellant which is as under:-- "In our view both the parties to this case have intentionally avoided to come out with the truth in the Court. according to report under Section 173 Cr.P.C. till the occurrence regarding the murder of deceased the parties to this occurrence had quarreled thrice on the same day. First of all at 7.30 in the morning a quarrel took place between Babar cousin of the First Informant on one side and Ashraf brother of Akram accused on the other and then secondly at 8.00 a.m. PW-3 Riaz, etc. had a fight with llyas accused and other in which llyas accused had suffered a fire-arm injury and it was generally rumored in the vicinity that llyas accused stood murdered. On it Ghafoor accused who is father of llyas accused while being armed with churri came to Bazar to take revenge for the murder of his son-in-law and as soon as he had ceased Fazal deceased from the accused party he attacked him. This Court is fully cons.ious that this report under Section 173 Cr.P.0 per se has no evidentiary value unless it gets support from the evidence collected and produced in the Court, in the light of evidence available in the record in which both the parties to the case appeared to have suppressed material facts, the Court would see and determine as to how probably the occurrence might have taken place."
9. The above quoted conclusion of the learned trial Court about the prosecution case in the impugned judgment would show that the presence of eye-witnesses was disbelieved by the learned trial Court and ultimately the conviction and sentence was recorded on the basis of report under Section 173 Cr.P.C. It would be important to mention over here that Cr. Rev. No, 169/98 for enhancement of sentence was filed by the complainant and the same was dismissed on merits, whereas the acquittal of co-accused Muhammad Akram and Muhammad llyas injured was challenged by the complainant through cr. Appeal No, 367/98 but the same was withdrawn. The order of withdrawal passed by a learned D.B. of this Court is reproduced below:-- "26.2.2007Mr. Muhammad Munir Bhatti, Advocate.
Seeks permission to withdraw this appeal. Dismissed as withdrawn".
Sd/- (Syed Shabbar Raza Rizvi)
Sd/- (Sardar Muhammad Aslam)
Judge.Judge.
In my view after withdrawal of Cr. Appeal against acquittal the prosecution/complainant has conceded to the findings of the learned trial Court. Even otherwise, it is settled proposition of law that when the prosecution evidence is disbelieved and the statement of accused is taken into consideration for recording his conviction and sentence, that is to be believed in toto and not in isolation from the exculpatory part of statement of accused, secondly the report under Section 173 Cr.P.0 was never tendered in evidence by the prosecution nor the contents of same was proved in accordance with the provisions Art.74 of Qanoon-e-Shahadat Order, 1984, then the same could not be relied upon by the learned trial Court for the purpose of conviction and sentence of the appellant.
10. As the evidence of PW.3 and PW.4 who are son and nephew of the deceased is concerned, their presence were disbelieved by the learned trial Court and it appeals to reason that if all the three eyewitnesses had been present on the spot they must have come forward to save their father from accused-appellant who was armed with churri and was aged about 55 years whereas all the three eye-witnesses were young and able-bodied, according to the observation of the learned trial Court.
11. Another important aspect of the case is that, two acquitted accused namely Muhammad Akram and Muhammad Ryas were examined on the same day i,e, the date of occurrence by Dr. Sajid PW.13 at 9.25 a.m. and 10.00 a.m. respectively and said doctor in his cross-examination admitted about their examination and injuries on their person and MLR Ex.PW.13/DA and Ex.PW.13/D were duly proved by him being scribe of the said document and he found fire-arm injury on the person of Muhammad llyas acquitted accused who was admitted in the hospital on the same day as per record but the said injuries on the person of two accused were suppressed by the prosecution.
12. As far as the contention of the learned counsel for complainant that Muhammad llyas was re- examined by the Board after nine months and CW.1 stated that Board was of the opinion that it was highly doubtful and possibility of fabrication existed, which in my view is of no help to the prosecution as Muhammad Ilyas was examined by the Board after nine months and by that time; only scar was available and injuries were completely healed up and mere opinion of CW.1 or Board cannot be preferred on the statement of PW.13 who examined the said two accused on the same day and found the injuries on their person and said injuries were fresh one and caused by fire- arms. The defence plea taken by the appellant is borne out from the record and it was quite natural that when M. Ilyas son-in-law of appellant received a fire-arm injury and M. Akram a close relative was also injured at a distance of 20/25 yards from the house of the appellant and on hue and cry he came to know that his son-in-law (Muhammad Ilyas) was murdered by the deceased, then he being armed with churn to save the life of his son-in-law and other injured PW reached at the spot and caused injuries to the deceased and even in my considered view the appellant has not exceeded the right of self-defence. For facility of reference I would like to refer to relevant provision of Section 100 PPC which provides a complete defence to the appellant; "100. When the right of private defence of the body extends to causing death.-The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: First. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;"
Where Section 102 PPC postulates that right of self-defence continues till the time that apprehension is not over. For facility of reference Section 102 PPC is reproduced below: "102. Commencement and continuance of the right of private defence of the body. The right of private defence of the body commences as soon as a reasonable Apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues".
The above quoted provision of law is very much clear on the subject, that right of self-defence starts the moment apprehension to body arises, and continues till the danger is over and it is not necessary that one receives as any injury, as apprehension of body injury or death cannot he measured at golden scale, more particularly in the present case when two very near and dear of appellant were injured and son-in-law of appellant has received fire-arm injury on his person.
Keeping in view the defence plea in juxta position with the prosecution case, the defence plea is more plausible as the motive for attack was available to the complainant party when Babar (not produced) was stopped to pass tractor trolley from the property of the accused party in the early hours of the day whereafter the motive was with the complainant party. It is settled law when the defence plea is proved then, the prosecution case would stand shattered and discredited and if the defence plea is substantiated to the extent of creating doubt in the credibility of prosecution that would be enough and if it is not established, no benefit will go to the prosecution on that account, as it is the duty of the prosecution to prove its case beyond doubt and that burden of prosecution would not diminish, if the defence plea is not proved or is found false. In the present case the appellant while proving its plea has discharged its onus, so in my considered view the appellant was well within his right to cause injuries to the deceased to save his nearer and dearer, hence this appeal is allowed and conviction and sentence of the appellant is set aside. The appellant is on bail, his surety stands discharged from the bail bonds. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.